Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: "Ben Tilly" <btilly@gmail.com>
Date: Wed, 4 Oct 2006 06:53:22 -0700

On 10/4/06, stephen@xemacs.org <stephen@xemacs.org> wrote:
> Ben Tilly writes:
>
>  > On 10/3/06, stephen@xemacs.org <stephen@xemacs.org> wrote:
>  > > Ben Tilly writes:
[...]
>  > > You don't believe in demand-inducing innovations?
>  >
>  > What I meant is that I do not think that (a) was involved in Norbert's
>  > statement.  I'm not saying that demand-inducing innovations are not
>  > important.  Just that they are orthogonal to what Norbert was
>  > saying.
>
> Ie, he doesn't believe they're important.  I really don't think
> throwing away what is potentially the biggest benefit of a patent
> system (each innovation being made earlier) is kosher.

Norbert already addressed this point, and correctly summarized what I meant..

[...]
>  > > didn't know yet.  Eg, the Cameron technology, which we've been told
>  > > several times is oh-so-obvious and has been forever.  Consider your
>  > > dependency criterion: is SIMD ten years old yet? Unicode is, and XML
>  > > is getting close.
>  >
>  > That is not why I thought so.
>
> I know that is not why you thought so; you thought so because reading
> the description you find it easy to believe that asked for that
> technology you'd come up with it.  But you didn't, nor did Tom, nor
> Jamie.  So let's not talk about hindsight; it *is* orthogonal to the
> issues.

Please stop trying to guess why I thought so and actually **ASK** if
you care.  That is _also_ not why I thought so.  Unlike Tom or Jamie,
the technology involves an area of programming that I have never been
part of, and therefore I cannot judge the quality of the proposed
patent.

> From the foresight point of view, you proposed a ten year criterion.
> The Cameron technology passes.

From my point of view the question of whether the Cameron technology
specifically should get a patent is minor.  If I can come up with a
suggestion that would remove 80% of the breakage in the system, and
remove 20% of the truly worthy patents, I'm OK with the fact that some
bad patents get through and some good ones are stopped - the patent
system as a whole would still be improved.

>  > > *guffaw* It's harder than that to unbreak an egg.  Here, just cite Ted
>  > > Nelson and you've got a couple decades leeway.
>  >
>  > According to Wikipedia, the first software release for project Xanadu
>  > was in 1998, so that egg remains broken.  Besides, all you need to do
>  > is say that "depends on" in this case are dependencies for the actual
>  > implementation.
>
> You *really* don't want to go there.  That is the biggest breakage in
> the current patent system: the fact that only patents are considered
> prior art.  That's for pragmatic reasons: they're easier to search
> than the whole CS literature for the examiners.  But you want to
> enshrine even worse breakage in the defined procedure?!  Do you really
> want the only thing that counts as prior art to be art that's actually
> released?  You do understand that to get the interpretation you want,
> you'd have to concede that in fairness?

No, I don't understand why I'd have to concede anything in fairness.
I'm not redefining prior art.  I'm saying that if your implementation
depends in an essential way on technologies that have been on the
market less than 10 years, then you won't be granted the patent at
all.  It is an additional bar that patents would have to pass.

The justification for this bar is that with a new technology,
obviousness is too difficult for examiners and judges to fairly judge.
 As you can see this criteria is entirely separate from prior art.

> There is no shame in just wanting patents to go away.  That's an
> honest, and perhaps the most correct, point of view.  Why not stick to
> that?

Because there are patents that I think are good.

What the patent system is supposed to do is create incentives for
ideas which are obvious once you see them, but which otherwise might
not come to market.  An example of a patent that I like is
http://www.patentstorm.us/patents/5812063.html.  That was a novel use
of many well-understood technologies.  Suppose that I'm a small
inventor sitting at home and I think up something like that.  The
*only* way that I'm going to get any reward for it is the patent
system.

>  > But I did have a point.  Which is that there is a world of difference
>  > between ideas that nobody has claimed because nobody has gotten around
>  > to it, and ideas that nobody has claimed because they really aren't
>  > obvious.  The patent system is supposed to reward the latter and not
>  > the former.  The problem is that the two can be hard to distinguish.
>
> That's a structural problem, that we expect patent examiners to be
> experts in technology rather than arbitrators among competing
> experts.  Adversarial procedures have been proposed for a long time,
> but few patenters like them for obvious reasons, and patent opponents
> are chasing the will-o-the-wisp of abolition, so there's too little
> grass-roots support for it to overcome the status quo.

You'll note that I came up with a suggestion for a non-adversarial
procedure that I think significantly improves the status quo in this
regard.  However it may be that I'm the only person on the planet who
likes the idea, so it is unlikely to go anywhere.

Cheers,
Ben